(40 Sup.Ct.) liquors manufactured before such amendment No. 30. Argued March 29, 1920: became effective. 12. INTOXICATING LIQUORS 13-NATIONAL PROHIBITION ACT IS WITHIN POWERS OF CONGRESS. The National Prohibition Act, which treats liquors containing one-half of 1 per cent. of alcohol by volume and fit for use for beverage purposes as within the powers of enforcement conferred on Congress by Const. Amend. 18, does not transcend the powers so conferred. Mr. Justice McKenna and Mr. Justice Clarke dissenting in part. No. 696: Appeal from the District Court of the United States for the District of Massachusetts. No. 752: Appeal from the District Court of the United States for the Western District of Kentucky. Original suits by the State of Rhode Island and by the State of New Jersey against A. Mitchell Palmer, Attorney General, and others. Suits dismissed. Suits by George C. Dempsey against Thomas J. Boynton, as United States Attorney, and others, by the Kentucky Distilleries & Warehouse Company against W. V. Gregory, as United States Attorney, and others, by Christian Feigenspan, a corporation, against Joseph L. Bodine, as United States attorney, and others, by the Manitowoc Products Company against Hiram A. Sawyer, as United States Attorney, and others, and by the St. Louis Brewing Association against George H. Moore, Collector, and others. From a decree in favor of plaintiff in the suit by the Manitowoc Products Company, defendants appeal, and from decrees for the defendants in the other suits, the plaintiffs appeal. Decree in the suit by the Manitowoc Products Company reversed, and decrees in the other suits affirmed. See, also, State of Rhode Island v. Palmer, 40 Sup. Ct. 179, 64 L. Ed. -; State of New Jersey v. Palmer, 252 U. S. 570, 40 Sup. Ct. 345, 64 L. Ed. Mr. Thomas F. McCran, of Paterson, N. J., for complainant. Mr. Assistant Attorney General Frierson, for respondents. No. 788: Appeal from the District Court of the United States for the District of New Jersey. No. 794: Appeal from the District Court No. 794. Argued March 30, 1920: of the United States for the Eastern District of Wisconsin. No. 837: Appeal from the District Court of the United States for the Eastern District of Missouri. No. 696. Argued March 9, 1920: Mass., for appellant. for appellees. No. 752. Argued March 9 and 10, 1920: Messrs. Levy Mayer, of Chicago, Ill., and William Marshall Bullitt, of Louisville, Ky., for appellant. Mr. Solicitor General King and Mr. Assistant Attorney General Frierson, for appellees. No. 788. Argued March 29 and 30, 1920: Messrs. Elihu Root and William D. Guthrie, both of New York City, for appellant. Mr. Solicitor General King and Mr. Assistant Attorney General Frierson, for appellees. Mr. Solicitor General King and Mr. Assistant Attorney General Frierson, for appellants. Mr. Ralph W. Jackman, of Madison, Wis., for appellee. No. 837. Submitted March 29, 1920: Messrs. Charles A. Houts, John T. Fitzsimmons, and Edward C. Crow, all of St. Louis, Mo., for appellant. ant Attorney General Frierson, for appelMr. Solicitor General King and Mr. Assistlees. #384 *Mr. Justice VAN DEVANTER announced the conclusions of the Court. Power to amend the Constitution was reserved by article 5, which reads: *385 Application of the Legislatures of two-thirds of the several States, shall call a Convention case, shall be valid to all Intents and Purposes, for proposing Amendments, which, in either the Legislatures of three-fourths of the several as Part of this Constitution, when ratified by States, or by Conventions in three-fourths For opinion below in Christian Feigenspan thereof, as the one or the other Mode of Ratifiv. Bodine, see 264 Fed. 186. cation may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate." "The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the No. 29. Argued March 8 and 9, 1920: *353 *Mr. Herbert A. Rice, of Providence, R. I., for complainant. The text of the Eighteenth Amendment, Mr. Solicitor General King and Mr. Assist-proposed by Congress in 1917 and proclaimed art Attorney General Frierson, for respond- as ratified in 1919 (40 Stat. 1050, 1941), is ents. as follows: For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes "Section 1. After one year from the ratifica-erative throughout the entire territorial limtion of this article the manufacture, sale, or its of the United States, binds all legislative transportation of intoxicating liquors within, bodies, courts, public officers and individuals the importation thereof into, or the exporta- within those limits, and of its own force intion thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited. "Sec. 2. The Congress and the several states shall have concurrent power to enforce this article by appropriate legislation." *387 validates every legislative act, whether by Congress, by a state Legislature, or by a territorial assembly, which authorizes or sanctions what the section prohibits. [7] 7. The second section of the amendment-the one declaring "The Congress and We here are concerned with seven cases the several states shall have concurrent powinvolving the validity of that amendment er to enforce this article by appropriate legand of certain general features of the Na-islation"-does not enable Congress or the tional Prohibition Law, known as the Vol- several states to defeat or thwart the prostead Act, c. 85, Acts 66th Cong., 1st Sess. hibition, but only to enforce it by appro(41 Stat. 305), which was adopted to enforce priate means. the amendment. The relief sought in each case is an injunction against the execution of that act. Two of the cases-Nos. 29 and 30, original,-were brought in this court, and the others in District Courts. Nos. 696, 752, 788, and 837 are here on appeals from decrees refusing injunctions, and No. 794 from a decree granting an injunction. The cases have been elaborately argued at the bar and in *printed briefs; and the arguments have been attentively considered, with the result that we reach and announce the following conclusions on the questions involved: #386 [1] 1. The adoption by both houses of Congress, each by a two-thirds vote, of a joint resolution proposing an amendment to the Constitution sufficiently shows that the proposal was deemed necessary by all who voted for it. An express declaration that they regarded it as necessary is not essential. None of the resolutions whereby prior amendments were proposed contained such a declaration. [6] 6. The first section of the amendment -the one embodying the prohibition-is op [8-10] S. The words "concurrent power," in that section, do not mean joint power, or require that legislation thereunder by Congress, to be effective, shall be approved or sanctioned by the several states or any of them; nor do they mean that the power to enforce is divided between Congress and the several states along the lines which separate or distinguish foreign and interstate commerce from intrastate affairs. 9. The power confided to Congress by that section, while not exclusive, is territorially coextensive with the prohibition of the first section, embraces manufacture and other intrastate transactions as well as importation, exportation and interstate traffic, and is in no wise dependent on or affected by action or inaction on the part of the several states or any of them. [11] 10. That power exerted may be against the disposal for beverage purposes of liquors manufactured before the amendment became effective just as it may be against subsequent manufacture for those purposes. In either case it is a constitutional mandate or prohibition that is being en forced. [2] 2. The two-thirds vote in each house which is required in proposing an amendment is a vote of two-thirds of the members present-assuming the presence of a quorum -and not a vote of two-thirds of the entire membership, present and absent. Missouri Pacific Ry. Co. v. Kansas, 248 U. S. 276, 39 Sup. Ct. 93, 63 L. Ed. 239, 2 A. L. R. 1589. [12] 11. While recognizing that there are limits beyond which Congress cannot go in treating beverages as within its power of enforcement, we think those limits are not [3] 3. The referendum provisions of state transcended by the provision of the Volstead Constitutions and statutes cannot be ap- Act (title 2, § 1), wherein liquors containing plied, consistently with the Constitution of as much as one-half of 1 per cent. of alcohol the United States, in the ratification or re- by volume and fit for use for beverage *purjection of amendments to it. Hawke v. poses are treated as within that power. Smith, 253 U. S. 221, 40 Sup. Ct. 495, 64 L. Jacob Ruppert v. Caffey, 251 U. S. 264, 40 Ed., decided June 1, 1920. Sup. Ct. 141, 64 L. Ed. -. *388 [4] 4. The prohibition of the manufacture, sale, transportation, importation and expor-pose of the cases as follows: tation of intoxicating liquors for beverage purposes, as embodied in the Eighteenth Amendment, is within the power to amend reserved by article 5 of the Constitution. [5] 5. That amendment, by lawful proposal and ratification, has become a part of the Constitution, and must be respected and given effect the same as other provisions of that instrument. Giving effect to these conclusions, we dis In Nos. 29 and 30, original, the bills are dismissed. In No. 794, the decree is reversed. In Nos. 696, 752, 788 and 837, the decrees are affirmed. Mr. Chief Justice WHITE concurring. I profoundly regret that in a case of this magnitude, affecting as it does an amendment to the Constitution dealing with the powers and duties of the national and state (40 Sup.Ct.) governments, and intimately concerning the controlling. But as the power of both Conwelfare of the whole people, the court has gress and the states in this instance is given deemed it proper to state only ultimate con- by the Constitution in one and the same proclusions without an exposition of the rea- vision, I again find myself unable to accept soning by which they have been reached. the view urged because it ostensibly accepts the constitutional mandate as to the concurrence of the two powers and proceeds immediately by way of interpretation to destroy it by making one paramount over the other. 3. The proposition is that the concurrent $390 I appreciate the difficulties which a solution of the cases involve and the solicitude with which the court has approached them, but it seems to my mind that the greater the perplexities the greater the duty devolving upon me to express the reasons which have led me to the conclusion that the amendment accomplishes and was intended to accomplish the purposes now attributed to it in the propositions concerning that subject which the court has just announced and in which I concur. Primarily in doing this I notice various contentions made concerning the proper construction of the provisions of the amendment which I have been unable to accept, in order that by contrast they may add cogency to the statement of the understanding I have of the amendment. The amendment, which is reproduced in the announcement for the court, contains three numbered paragraphs or sections, two of which only need be noticed. The first prohibits powers con*ferred upon Congress and the states are not subject to conflict because their exertion is authorized within different areas, that is, by Congress within the field of federal authority, and by the states within the sphere of state power, hence leaving the states free within their jurisdiction to determine separately for themselves what, within reasonable limits, is an intoxicating liquor, and to Congress the same right within the sphere of its jurisdiction. But the unsoundness of this more plausible contention seems to me at once exposed by directing attention to the fact that in a case where no state legislation was enacted there would be no prohibition, thus again frustrating the first section by a construction affixed to the second. It is no answer to suggest that a regulation by Congress would in such event be operative in such a state, since the basis of the distinction upon which the argument rests is that the concurrent power conferred upon Congress is confined to the area of its jurisdiction and therefore is not operative within a state. *389 "the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes." The second is as follows: "Sec. 2. The Congress and the several states shall have concurrent power to enforce this article by appropriate legislation." 1. It is contended that the result of these provisions is to require concurrent action of Congress and the states in enforcing the prohibition of the first section and hence that in the absence of such concurrent action by Congress and the states no enforcing legislation can exist, and therefore until this takes place the prohibition of the first section is a dead letter. But in view of the manifest purpose of the first section to apply and make efficacious the prohibition, and of the second to deal with the methods of carrying out that pur pose, I cannot accept this interpretation, since it would result simply in declaring that the provisions of the second section, avowedly enacted to provide means for carrying out the first, must be so interpreted as to practically nullify the first. Comprehensively looking at all these contentions, the confusion and contradiction to which they lead, serve in my judgment to make it certain that it cannot possibly be that Congress and the states entered into the great and important business of amending the Constitution in a matter so vitally concerning all the people solely in order to render governmental action impossible, or, if possible, to so define and limit it as to cause it to be productive of no results and to frustrate the obvious intent and general purpose contemplated. It is true indeed that the mere words of the second section tend to these results, but if they be read in the light of the cardinal rule which compels a consideration of the context in view of the situation and the subject with which the amendment dealt and the purpose which it was intended to accomplish, the confusion will be seen to be only apparent. In the first place, it is indisputable, as I *391 2. It is said, conceding that the concurrent power given to Congress and to the states have stated, *that the first section imposes a does not as a prerequisite exact the concur- general prohibition which it was the purpose rent action of both, it nevertheless contem- to make universally and uniformly operative plates the possibility of action by Congress and efficacious. In the second place, as the and by the states and makes each action ef- prohibition did not define the intoxica ting fective, but as under the Constitution the au- beverages which it prohibited, in the absence thority of Congress in enforcing the Consti- of anything to the contrary, it clearly, from tution is paramount, when state legislation the very fact of its adoption, cast upon Conand congressional action conflict the state gress the duty, not only of defining the prolegislation yields to the action of Congress as hibited beverages, but also of enacting such Mr. Justice McKENNA, dissenting. This case is concerned with the Eighteenth Amendment of the Constitution of the Unit regulations and sanctions as were essential | Amendment. Because of the bewilderment to make them operative when defined. In the which it creates, a multitude of questions will third place, when the second section is con- inevitably arise and demand solution here. sidered with these truths in mind it becomes In the circumstances I prefer to remain free clear that it simply manifests a like purpose to consider these questions when they arrive. to adjust, as far as possible, the exercise of the new powers cast upon Congress by the amendment to the dual system of government existing under the Constitution. In other words, dealing with the new prohibition cre- ed States, its validity and construction. In ated by the Constitution, operating through-order to have it, and its scope in attention, out the length and breadth of the United States, without reference to state lines or the *"Section 1. After one year from the ratificadistinctions between state and federal power, tion of this article the manufacture, sale, or and contemplating the exercise by Congress transportation of intoxicating liquors within, of the duty cast upon it to make the prohibi- the importation thereof into, or the exportation tion efficacious, it was sought by the second thereof from the United States and all terrisection to unite national and state adminis- tory subject to the jurisdiction thereof for bevtrative agencies in giving effect to the amend- erage purposes is hereby prohibited. ment and the legislation of Congress enacted to make it completely operative. I quote it: *393 Mark the relation of the text to this view, since the power which it gives to state and nation is, not to construct or perfect or cause the amendment to be completely operative, but as already made completely operative, to enforce it. Observe also the words of the grant which confines the concurrent power given to legislation appropriate to the purpose of enforcement. I take it that if the second section of the article did not exist no one would gainsay that the first section in and of itself granted the power and imposed the duty upon Congress to legislate to the end that by definition and sanction the amendment would become *392 fully operative. This being true it would follow, if the contentions under consideration were sustained, that the second section gave the states the power to nullify the first section, since a refusal of a state to define and sanction would again result in no amendment to be enforced in such refusing state. Limiting the concurrent power to enforce given by the second section to the purposes which I have attributed to it, that is, to the subjects appropriate to execute the amendment as defined and sanctioned by Congress, I assume that it will not be denied that the effect of the grant of authority was to confer upon both Congress and the states power to do things which otherwise there would be no right to do. This being true, I submit that no reason exists for saying that a grant of concurrent power to Congress and the states to give effect to, that is, to carry out or enforce, the amendment as defined and sanetioned by Congress, should be interpreted to deprive Congress of the power to create, by definition and sanction, an enforceable amendment. Mr. Justice MeREYNOLDS concurring. I do not dissent from the disposition of these causes as ordered by the court, but confine my concurrence to that. It is impossible now to say with fair certainty what construction should be given to the Eighteenth shall have concurrent power to enforce this ar"Sec. 2. The Congress and the several states ticle by appropriate legislation." The court in applying it has dismissed certain of the bills, reversed the decree in one, and affirmed the decrees in four others. I am unable to agree with the judgment reversing No. 794 and affirming Nos. 752, 696, 788, and 837. I am, however, at a loss how or to what extent to express the grounds for this action. The court declares conclusions only, without giving any reasons for them. The instance may be wise-establishing a precedent now, hereafter wisely to be imitated. It will undoubtedly decrease the literature of the court if it does not increase its lucidity. However, reasons for the conclusions have been omitted, and my comment upon them may come from a misunderstanding of them, their present import and ultimate purpose and force. There are, however, clear declarations that the Eighteenth Amendment is part of the Constitution of the United States, made so in observance of the prescribed constitutional procedure, and has become part of the Constitution of the United States, to be respected and given effect like other provisions of that instrument. With these conclusions I agree.. Conclusions 4, 5, and 6 seem to assert the undisputed. I neither assent to them or dissent from them except so far as I shall presently express. Conclusion 7 seems an unnecessary declaration. It may, however, be considered as supplementary to some other declaration. *394 My only comment is that I know of no *intimation in the case that section 2 in conferring concurrent power on Congress and the states to enforce the prohibition of the first section, conferred a power to defeat or obstruct prohibition. Of course, the power was conferred as a means to enforce the prohibition and was made concurrent to engage the resources and instrumentalities of the nation and the states. The power was conferred for use, not for abuse. Conclusions 8 and 9, as I view them, are (40 Sup.Ct.) complements of each other, and express, with | ment, it will be seen to be a restriction upon a certain verbal detail, the power of Con- state and congressional power, and the degress and the states over the liquor traffic, duction from it is that neither the states nor using the word in its comprehensive sense Congress can enact legislation that contraas including the production of liquor, its venes its prohibition. And there is no room transportation within the states, its exporta- for controversy as to its requirement. Its tion from them, and its importation into prohibition of "intoxicating liquors" "for them. In a word, give power over the liq- beverage purposes" is absolute. And, as acuor business from producer to consumer, cessory to that prohibition, is the further proprescribe the quality of latter's beverage. hibition of their manufacture, sale or transCertain determining elements are expressed. portation within or their importation into or It is said that the words "concurrent power" exportation "from the United States." Its of section 2 do not mean joint power in Con- prohibition, therefore, is national, and congress and the states, nor the approval by the sidered alone, the means of its enforcement states of congressional legislation, nor its de- might be such as Congress, the agency of pendency upon state action or inaction. *396 I cannot confidently measure the force of the declarations or the deductions that are, or can be made from them. They seem to be regarded as sufficient to impel the conclusion that the Volstead Act is legal legislation and operative throughout the United States. But are there no opposing considerations, no conditions upon its operation? And what of conflicts, and there are conflicts, and more there may be, between it and state legislation? The conclusions of the court do not answer the questions and yet they are submitted for decision; and their importance appeals for judgment upon them. It is to be remembered states are litigants as well as private citizens, the former presenting the rights of the states, the latter seeking protection against the asserted aggression of the act in controversy. And there is opposing state national power might *prescribe. But it does not stand alone. Section 2 associates Congress and the states in power to enforce it. Its words are: "The Congress and the several states shall have concurrent power to enforce this article by appropriate legislation." What, then, is meant by the words "concurrent power"? Do they mean united action, or separate and independent action, and, if the actions differ (there is no practical problem unless they differ), shall that of Congress be supreme? The government answers that the words mean separate and independent action, and, in case of conflict, that of Congress is supreme, and asserts besides, that the answer is sustained by historical and legal precedents. I contest the assertions and oppose to them the common usage of our language, *397 *395 legislation, why not a deci*sion upon it? Is it on account of the nature of the actions being civil and in equity, the proper forum being a criminal court investigating a criminal charge? There should be some way to avert the necessity or odium of either. I cannot pause to enumerate the contentions in the case. Some of them present a question of joint action in Congress and the states, either collectively with all or severally with each. Others assert spheres of the powers, involving no collision, it is said, the powers of Congress and the states being supreme and exclusive within the spheres of their exercise called by counsel "historical fields of jurisdiction." I submit again, they should have consideration and decision. The government has felt and exhibited the necessity of such consideration and decision. It knows the conflicts that exist or impend. It desires to be able to meet them, silence them and bring the repose that will come from a distinct declaration and delimitation of the power of Congress and the states. The court, however, thinks otherwise and I pass to the question in the case. It is a simple one, it involves the meaning of a few English words-in what sense they shall be taken, 2 Definitions of the dictionaries are as follows: whether in their ordinary sense, or have put The Century: "Concurrent: 2. Concurring; upon them an unusual sense. acting in conjunction; agreeing in the same act; Recurring to the first section of the amend- contributing to the same event or effect; operat And after citing cases, the government says: "It will thus be seen that in legal nomenclature the concurrent power of the states and of Congress is clearly and unmistakably defined. It simply means the right of each to act with respect to a particular subject-matter separately and independently." and the definitions of our lexicons, *general and legal.2 Some of the definitions assign to 1 The following is the contention of the government which we give to accurately represent it: "It is true that the word 'concurrent' has various meanings, according to the connection in which it is used. It may undoubtedly be used to indicate that something is to be accomplished by two or more And again: "It is to be noted that section 2 does |
